Her Majesty the Queen - v. -, 2011 SKPC 031

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 031 Date: February 11, 2011 Information: 40301399 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - 101009484 Saskatchewan Ltd. dba Robwel Constructors Limited Partnership Appearing: M. Miller / S. Guiboche For the Crown A. Fox, Q.C. / N. Karkut For the Accused JUDGMENT H. M. HARRADENCE, J I. INTRODUCTION [ 1 ] On October 23, 2006, Ron Deglau died tragically at the McArthur River mine site in northern Saskatchewan.

This site is a uranium mine owned and operated by Cameco. Mr. Deglau was an employee of the Defendant, Robwel Constructors (referred to as Robwel), a general construction company who had contracted with Cameco to do work at the mine site. A significant part of this work

was in relation to water piping. Ron Deglau was at the time of his death working with Terrence Piche and Jonathan Blatz clearing and de-icing water lines. It is agreed that he died due to an airway obstruction by a mid-facial fracture. The cause of these injuries was, “due to a pipe that struck Mr. Deglau in the face. He was 46 years old at the time of his death.” [1] [ 2 ] On October 23, 2006, Deglau, Piche and Blatz were clearing a10 inch PVC pipe. Pressurized air from an air compressor was being placed into the pipe in order to determine if the pipe was blocked.

Jonathan Blatz, an employee of Robwel, was operating the compressor. Piche and Deglau had gone to the end of the pipe where it emptied into a pond. Piche testified that at the end of the pipe he and Ron Deglau saw a chunk of ice lodged in the pipe. Piche testified that Ron Deglau radioed to Blatz to discontinue the air pressure, then unexpectedly the pipe whipped into the air and struck Ron Deglau in the face.

Piche estimated that both he and Ron Deglau were standing 8 feet from the end of the pipe, behind a concrete barricade. [ 3 ] Neil Crocker, the Director of The Mine Safety Unit, and the Chief Inspector of Mines for Saskatchewan attended at the mine site the day after the incident, to investigate the incident. He testified that in general this piping is quite heavy but flexible. He took measurements which indicated to him that the pipe that struck and killed Ron Deglau had whipped 41 feet and then recoiled back to land 25 feet from its original location.

Crocker agreed that a movement of this pipe, to this degree, was unexpected. [ 4 ] As a result of this incident the Defendant, Robwel Constructors, was charged on October 7, 2008, with the following offences:

(1) Fail to ensure that all work (to wit: the de-watering and/or de-icing of pipes) at a place of employment (to wit: the work area between shaft #3 and pond D at the Cameco Corporation McArthur River Mine) is sufficiently and competently supervised as is required by section 17(1) of The Occupational Health and Safety Regulations, 1996 , thereby contravening sections 57(

b) and 58(7) of The Occupational Health and Safety Act, 1993 .

(2) Fail to ensure, insofar as is reasonably practicable, the health, safety and welfare at work (to wit: the de-watering and/or de-icing of pipes in the work area between shaft #3 and pond D at the Cameco Corporation McArthur River Mine) of two of their workers (to wit: Ronald Deglau and Terrence Piche) as is required by

section 3 of The Occupational Health and Safety Act, 1993 , thereby contravening sections 57(

a) and 58(7) of The Occupational Health and Safety Act, 1993 .

(3) Fail to develop a written program for the training of workers (to wit: Ronald Deglau, Terrence Piche and John Blatz) to ensure that they are adequately trained to carry out their duties (to wit: the de-watering and/or de-icing of pipes in the work area between shaft #3 and pond D at the Cameco Corporation McArthur River Mine) safely as is required by

section 20 of The Mines Regulations, 2003 , thereby contravening sections 57(

b) and 58(7) of The Occupational Health and Safety Act, 1993 .

(4) Fail to ensure that a worker (to wit: Ronald Deglau and Terrence Piche) is trained in all matters that are necessary to protect the health and safety of the worker when the worker begins work (to wit: the de-watering and/or de-icing of pipes) at a place of employment (to wit: the work area between shaft #3 and pond D at the Cameco Corporation McArthur River Mine) or is moved from one work activity or worksite to another that differs with respect to hazards, facilities or procedures as is required by section 19(1) of The Occupational Health and Safety Regulations, 1996 , thereby contravening sections 57(

b) and 58(7) of The Occupational Health and Safety Act, 1993 .

(5) Fail to ensure that no worker (to wit: Ronald Deglau, Terrence Piche, and John Blatz) is permitted to perform work (to wit: the de- watering and/or de-icing of pipes in the work area between shaft #3 and pond D at the Cameco Corporation McArthur River Mine) unless the worker has been trained and has sufficient experience to perform the work safely and in compliance with the Act and the Regulations or is under close and competent supervision, as is required by section 19(4) of The Occupational Health and Safety Regulations, 1996 , thereby contravening sections 57(

b) and 58(7) of The Occupational Health and Safety Act , 1993. II. THE EVIDENCE [ 5 ] This trial was held over three days, October 19 to 21, 2010, in La Ronge Provincial Court. The Crown called 13 witnesses. The defence elected not to call any witnesses. There were a total of 27 exhibits filed, 14 Crown exhibits and 13 defence exhibits. I shall summarise the evidence under three headings:

1. The Incident; 2. The Investigation; 3. The Evidence of Safety Procedures; 1. The Incident [ 6 ] The incident which resulted in the death of Ron Deglau occurred on October 23, 2006. Robwel had entered into a general Construction Services Agreement [2] with Cameco on January 1, 2002. The Agreement provided for individual purchase orders to be provided by Cameco to Robwel from time to time. Robwel is owned by the Clearwater River Dene Nation. [3] [ 7 ] Ron Deglau was not a miner. Nor is there any evidence that Robwel is a mining company. Robwel is a general contracting company. At the time of Mr.

Deglau’s death it is estimated that there would have been 10 employees of Robwel at the McArthur River mine site. By comparison it is estimated that there were over 300 Cameco employees on this site in 2006. [ 8 ] Mr. Deglau was hired by Robwel to work on the McArthur River mine site on September 25, 2006, approximately one month before the incident that caused his death. A brief

summary of his qualifications as a general labourer is contained in Exhibit D7. [ 9 ] On October 23, 2006, Mr. Deglau was working with other Robwel employees, Jonathan Blatz and Terrence Piche. Jonathan Blatz’s resume, filed as Exhibit D10, indicates a work history as a general labourer with experience on oil rigs. The resume of Terrence Piche, Exhibit D10, shows some underground experience as a general labourer. These three Robwel employees were cleaning water pipes. These pipes originated underground and terminated in a pond near the mine site.

The purpose of the pipes was to extract water from the mine on an urgent basis if necessary. Deglau, Piche and Blatz were working with the pipes on the surface. There was a series of pipes as shown in photo booklet, Exhibit P13. The three 8 inch pipes had been cleared previously. On October 23, 2006, these three employees were working on clearing the single 10 inch pipe. The process involved cutting the pipe and attaching to it an air compressor.

Air was forced into the line, if the air pressure did not build up then the clearing process would continue and eventually a porcupine type ball (“the pig”) would be sent through the line to clear and clean the line. If the air pressure did build up that was an indication that the line was blocked and the instructions were that the air should be discontinued. Likely a blockage in the line, in late October, meant the line was frozen, in whole or in part, and would need to be cut and dragged inside to thaw. [ 10 ] On October 23, 2006, Jonathan Blatz was the operator of the compressor.

Despite his testimony that the Robwel employees took turns operating the compressor, it is my finding that he was predominantly the individual responsible for operating the compressor. All three employees were at the compressor. Deglau and Piche took a van to the end of the pipe where it emptied into a pond. [ 11 ] Piche testified he drove the van to the end of the pipe with Deglau. They sat at the end of the pipe in the van for approximately 10 minutes when they heard a loud bang and thereafter got out of the van.

They were standing outside the van approximately 8 feet from the end of the pipe behind concrete barriers shown in photos 6 and 7 of Exhibit P13. Piche said he and Ron Deglau saw a large piece of ice stuck in the end of the pipe. Deglau radioed Blatz to shut the air compressor off and then Piche says he saw the ice come out of the end of the line and heard a loud blast. He then says everything went white and he was struck by air pressure, which threw him to the ground. The next thing he remembers is lying under the van. He saw Ron Deglau lying face down and knew he was badly injured.

Piche took the van to get help as he could not find the two-way radio. Piche was able to get medical assistance, however due to the extent of the injury to Ron Deglau, his life was not able to be saved. [ 12 ] The compressor which Jonathan Blatz was operating was owned by Cameco. According to the evidence of both Neil Crocker, the Director of Mine Safety and Chief Inspector of Mines, and Ron Danielson, a Mine Inspector for the Province, who investigated the incident, the compressor was manually set to shut off at 102 psi. This is shown in photo 4 of Exhibit P13.

In addition, the compressor was set to automatically shut off at a pressure of 140 psi. [ 13 ] Jonathan Blatz testified that he was instructed by his supervisors, Gerry Rivers and Dennis Lenius, who were the on-site supervisors for Robwel, that he was to turn up the air pressure by 10 psi increments until the compressor was at its maximum of 140 psi. His testimony is that the compressor was not set to manually shut off at 102 psi.

He testified that Cameco’s instructions were only to allow the air pressure to increase to 102 psi but that his employer, Robwel, through its agents, Rivers and Lenius, told him to increase the air pressure until the compressor reached its maximum capacity.

[ 14 ] Jonathan Blatz says that he lied in his statement to the Occupational Health and Safety investigator when he did not tell them about turning the compressor to its maximum capacity. He does say that after his statement to Occupational Health and Safety he did speak to Joe Bonin, the safety manager for Robwel. Blatz says that he told Bonin that he had “pulled the trigger”.

When Bonin testified on this point he agreed that he had a conversation with Jonathan Blatz and Blatz told him he did not tell the truth in his statement and that the air compressor was higher than he had told Occupational Health and Safety, however, Bonin did not recall Blatz telling him that anyone had told him to turn the air compressor to its maximum setting. 2. The Investigation

a) Ronald Donaldson [ 15 ] Ronald Donaldson is employed as a mines investigator by the Government of Saskatchewan. He attended the mine site on October 24, 2006, with Neil Crocker. Mr. Donaldson was called as a witness at this trial. [ 16 ] He testified to his knowledge of the general procedure used when pigging or clearing lines. He also identified each of the photos contained in Exhibit P13 which was comprised of photos of the incident site. He says that the compressor shown in the photos was a powerful compressor.

He further testified that the manual shut off, as shown in photo 4 of Exhibit P13, was set at 102 psi. He also testified that the ends of the pipe, where it empties into the pond, were not secured or subject to any restraint. However in cross- examination he acknowledged that the pipes do appear to be restrained by virtue of them passing under a shed in close proximity to the pond. This is shown in Exhibits D4, D5 and D6. [ 17 ] This witness also testified in cross-examination to knowledge of a similar incident which occurred at McArthur River in December 2004, involving the contractor Tron Power.

Without objection from the Crown, defence counsel was allowed to mark as Exhibit D1, certain reports from this incident. Upon closer examination, these reports are not complete but it is apparent that the incident involved air pressure testing of lines which resulted in a plug flying from one of the clamps on the lines and striking an employee, causing serious injury.

b) Neil Crocker [ 18 ] Neil Crocker attended the site with Ronald Donaldson on October 24, 2006, as part of this investigation. Neil Crocker was not qualified to give opinion evidence. However, he does have extensive experience in the mining industry (32 years) and has a Bachelor of Science degree specializing in mines from the University of British Columbia. [ 19 ] Mr.

Crocker was able to provide general background as to the use of pipes to de-water mines if necessary. [ 20 ] He also indicated the importance of ensuring that the pipes are clear, year round, in the event that water needs to be pumped from the mines into surface ponds. He stressed the importance of having the lines secure, particularly when they are being cleaned. He noted that the lines in this case were not restrained.

However, in cross-examination he also acknowledged, when he was shown Exhibits D4, D5 and D6, that the lines pass underground close to the point where they were to empty into surface ponds. [ 21 ] Specifically in relation to the 10 inch pipe, he found no evidence that the pipe had failed. This was not surprising to him as the pipe was rated for 100 psi and he noted the compressor’s manual shut off had been set for 102 psi.

He also noted that the pipe had a built-in safety factor which indicated that it should not fail at levels one and a half to two times its rating. [ 22 ] Importantly, Neil Crocker was responsible for obtaining measurements of the pipe movement where Deglau and Piche had been standing. He testified that from the pond, where the pipe originated, it had whipped 41 feet. He was able to find the markings on the ground where the pipe touched the ground. It was his view that the pipe had then recoiled to come to rest approximately 25 feet from its original location.

Both Crocker and Donaldson agreed in cross-examination that based on their experience and education, a 10 inch pipe under air pressure whipping to this extent was not to be expected. Indeed the evidence is consistent that pipe movement of more than several feet was not a reasonable expectation.

3. The Evidence of Safety Procedures

a) Job Safety Analysis [ 23 ] In October 2006, Gary Haywood was the general manager of the McArthur River site for Cameco. He testified at this trial. [ 24 ] Mr. Haywood introduced a procedure to the McArthur River mine site called the Job Safety Analysis or Job Hazard Analysis. The purpose of this procedure was to ensure that for each job the safety hazards were identified and adequate precautions identified.

He stated that it was the responsibility of each contractor to complete a Job Safety Analysis (JSA), but the Cameco safety personnel were to ensure the JSA was completed and to assist in the completion of the JSA. It was his view that only if the work scope changed would a new JSA be required to be filed. [ 25 ] A JSA was completed by Robwel for clearing the lines in July 2006. [4] Gerry Rivers was the project coordinator for Robwel at the McArthur River mine site. He stated that 80 to 85% of Robwel’s work at the McArthur River mine site was cleaning lines.

He recognized P5 as the JSA he entered into on behalf of Robwel for the job of cleaning the lines in July 2006. He confirmed that there was no separate JSA completed for the work which Robwel was doing on October 23, 2006. He said there was not a separate scope of work for de-icing pipes. [ 26 ] The resume of Gerry Rivers was filed as D11. He had been a supervisor for Robwel at the McArthur River mine since 1999. For approximately 15 months prior to testifying at this trial he had been employed by Tron Power as their construction manager in Key Lake. He is a journeyman welder.

His resume indicates he has over 30 years of welding and pipe fitting experience. On October 23, 2006, he was the senior manager at the McArthur River site for Robwel. [ 27 ] Gerry Rivers testified in detail, both in examination-in-chief, and in cross-examination, as to the safety precautions taken by him on behalf of Robwel at the McArthur River mine site. He indicated that he took safety seriously and he tried to drive it home to every employee. He said in his examination-in-chief that he did not rush his employees.

He said he recognized the dangers of working with high pressure compressed air and he knew that it must be treated with respect and caution due to the hazardous nature of the job. Specifically he understood when applying air to a pipe, the release of ice or other obstructions was one of the hazards. [ 28 ] He said that Cameco was ultimately responsible for safety at the site. Robwel cooperated with Cameco in ensuring that the site was safe. Robwel conducted weekly safety meetings as well as daily tool box meetings where safety issues were discussed.

Specifically the minutes from the weekly safety meeting held on October 22, 2006, were filed as Exhibit P8. It is noted that Jonathan Blatz, Ron Deglau and Terrence Piche were at this meeting. The minutes reflect that under new business it was stated that you must stay back from the end of a line when air was being put through it.

Rivers says that he recalls reviewing the 2004 Tron Power incident with his employees. [ 29 ] Rivers also testified to a five point safety card system in place at Robwel and indicated that he would attend the job site approximately twice per day, but would likely see the employees four to five times per day when they came in for coffee and lunch and they were free to raise any safety concerns with him. [ 30 ] On October 23, 2006, Dennis Lenius was a foreman for Robwel at the McArthur River mine site. He states that Robwel was essentially a piping crew, installing and cleaning lines.

He says that he had just arrived back at the site on October 23 rd from his leave. On October 22 nd he was not at the mine site. Although the minutes of the safety meeting on October 22, 2006, indicate Lenius was present, he confirmed in his evidence that he was not at the mine site on that date. [ 31 ] Lenius is still employed by Robwel at McArthur River. He says that Robwel has not been involved in de-icing since this incident.

It was the view of Lenius that a proper plan has not been written for de-icing lines, since the incident. [ 32 ] Both Gerry Rivers and Dennis Lenius indicated that the concrete barriers or jersey barriers appearing in the photos contained in P13 were placed to restrict the movement of the pipes. This was confirmed by Neil Crocker in his testimony. Both Rivers and Lenius testified that they had never seen or heard of a pipe moving or whipping beyond the concrete barriers. They had no expectation that this would or could occur.

III. THE LAW [33] My colleague, His Honour Judge Koskie, identified in his oral decision, R. v. Task Construction,[5] the general remedial themeof regulatory legislation of this nature. He stated that the legislation must be broadly interpreted to ensure a minimal level of protectionfor all workers. [34] It is agreed by the parties that all of the offences in this matter are strict liability in nature as defined by Chief Justice Dickson in R. v. Sault Ste. Marie.[6] In R. v. Jamel Metals, which was filed by both parties, His Honour Judge Goldstein refers to Sault Ste. Marie as follows:[7] 8 In R. v. Sault Ste.

Marie (City), (SCC), [1978] 2 S.C.R. 1299 (S.C.C.) at 1325, we find the oft-quoted passagerespecting the three categories of offences found in public welfare law. These are: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must be provedby the prosecution either as an inference from the nature of the act committed, or by additional evidence. 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited actprima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event.

These offenses may properly be called offenses of strict liability. 3. Offenses of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. 9 It is agreed that violations of The Occupational Health and Safety Act, 1993, and regulations create offences of strict liability asdescribed in the second category, supra. Once the Crown proves, beyond a reasonable doubt, the actus reus of the offence, then primafacie the defendant is guilty.

However, it is open to the defendant to avoid guilt by establishing a defence of "due diligence," that is, byproving, upon a balance of probabilities, that the defendant took all reasonable care: R. v. Sault Ste. Marie (City), supra; R. v. McNamara(No. 1), (SCC), [1985] 1 S.C.R. 662 (S.C.C.) at 673; R. v. Wholesale Travel Group Inc., (SCC), [1991]3 S.C.R. 154 (S.C.C.). [35] R. v. Sault Ste. Marie was relatively recently applied by Madam Justice Wilkinson, as she then was, in Merchant v. The Law Society of Saskatchewan:[8] [47] …The Sault Ste.

Marie case gave recognition for the first time to an intermediate category of offences described as “strict liabilityoffences” (also referred to as “regulatory offences” or “public welfare offences”) where a defendant could avoid culpability for aprohibited act by demonstrating on a balance of probabilities that: (1) due diligence was exercised and all reasonable steps were taken toavoid its commission; or (2) the defendant held a reasonable belief in a set of facts which, if true, would render the act or omissioninnocent. . . . [50] … In strict liability offences, the onus is on the accused to establish on a balance of probabilities that he took all reasonable steps toavoid committing the offence.

Or, as more recently articulated by Goudge J.A., speaking for the Ontario Court of Appeal, what must beestablished is that the “… accused exercised all reasonable care by establishing a proper system to prevent commission of the offenceand by taking reasonable steps to ensure the effective operation of the system”. [51] … Thus, while the prosecution was required to prove beyond a reasonable doubt that the prohibited act has been committed, thedefendant had to establish, on a balance of probabilities, that he or she had been duly diligent, taking all reasonable care to avoidoffending.

Alternatively, the defendant had only to establish the requisite reasonable belief in a state of facts that, if true, would renderthe act an innocent one. [52] Therefore, a strict liability offence requires, at minimum, a fault element amounting to negligence before misconduct will be found.

Negligence consists in an unreasonable failure to know the facts which constitute the offence, or the failure to be duly diligent in taking steps which a reasonable person would take. [53] Accordingly, while lack of the requisite knowledge or intent constitutes a defence to a full mens rea offence, it is not a defence in law to a strict liability offence. Required instead is evidence that establishes on a balance of probabilities that all reasonable steps were taken by the defendant to prevent the commission of the prohibited act. [ 36 ] In

summary, in relation to the offences before the Court, the Crown is required to prove beyond a reasonable doubt the actus reus of the offences. If the Crown is able to prove the prohibited act required for each of these offences, Robwel is required to establish, on a balance of probabilities, that it took all reasonable steps to prevent the commission of the prohibited act. IV. ISSUES [ 37 ] There are two issues: 1. Has the Defendant Robwel Constructors established on a balance of probabilities that they took all reasonable steps to avoid the commission of the offence? 2.

In relation to count #3 does The Mines Regulations apply to Robwel Constructors? V. ANALYSIS [ 38 ] Both the Crown and Robwel made extensive arguments, both oral and written, as well as providing me with several cases. Particularly, counsel for Robwel filed a comprehensive and thorough brief at the conclusion of the trial. All of these arguments have been of assistance to me. [ 39 ] It is appropriate, that I make three initial observations prior to discussing the issues identified above.

Firstly, during this trial there was a great deal of comment on the role of Cameco and their potential responsibility for this incident. Cameco is not on trial before me. During the course of this trial it became apparent to me that Cameco has not been charged with any offence in relation to this incident. I see this as irrelevant to this trial.

It is trite, that I must apply the law to the evidence to determine whether Robwel is guilty of any of these charges. [ 40 ] Secondly, while the application of the law to the evidence is critical to my assessment, it is my observation that in relation to the due diligence defence the law is not in dispute. What is critical in this case are my findings of fact.

Although I have summarised the evidence above I have not itemized the evidence in detail, but I have considered all of the evidence in arriving at my findings. [ 41 ] Thirdly, as discussed above, the actus reus is an essential element of each of these charges and must be proven by the Crown. While the actus reus is not admitted by Robwel, it is not strenuously contested. Indeed, in paragraph 36 of their brief, counsel for Robwel states in part, “Robwel does not dispute that the line in question whipped in the air during the de-icing/de-watering process striking Mr.

Deglau and causing injuries which ultimately resulted in his death”. With this statement in mind, and having reviewed all of the evidence, I am satisfied that the actus reus of each of these offences has been established beyond a reasonable doubt. Issue #1: Has the Defendant Robwel Constructors established on a balance of probabilities that they took all reasonable steps to avoid the commission of the offence? [ 42 ] There are three areas of significance to this issue: 1. The operation of the compressor on October 23, 2006;

2. What was reasonably expected; 3. The safety steps taken by Robwel. [ 43 ] I will discuss each of these areas individually. 1. The operation of the compressor on October 23, 2006; [ 44 ] Clearly there is an irreconcilable difference in the evidence on this point. Jonathan Blatz testified that he was instructed by Rivers and Lenius to increase the pressure in the 10 inch pipe to unsafe levels. He admits that this was contrary to Cameco’s policy. Both Lenius and Rivers in their evidence deny providing this instruction to Blatz.

I have considered the evidence of Crocker and Danielson and the photographs of the compressor taken subsequently to the incident. The investigation by these two witnesses indicates that after this incident the compressor was shown to be set to shut off at 102 psi.

When I consider this evidence together with the evidence of Blatz, Lenius and Rivers, I conclude that the evidence of Jonathan Blatz, that he was instructed by Robwel employees to increase the compressor levels above 102 psi, is neither believable nor reliable. [ 45 ] While it is conceivable that Blatz of his own volition increased the air pressure beyond 102 psi and after the incident either he, or someone else, reset the compressor to this level, this scenario is unlikely.

Importantly, if this did occur, given the evidence of Rivers and Lenius, I find that there is no reliable evidence to suggest it happened on the direction of, or with the knowledge of, Robwel or any of its employees. Indeed it is my finding that any such unilateral action by Jonathan Blatz was contrary to the clear instruction from Robwel. Robwel should not be liable for such action if it did occur. Mr. Justice Maurice in R. v. Procrane , relies upon R. v.

Z-H Paper Products Ltd. in stating the following: [9] …Sanctions imposed upon him by legislation induce the employer to introduce and implement proper training programmes, safety standards and to hire competent and conscientious supervision.

On the other hand, once the employer has acted as a reasonable person in this regard and has taken all normal and reasonable precautions, necessary to carry on his business safely, in my view, it cannot be said that by imposing absolute liability on him, especially where the breach of a Regulation is brought about by the act of another person disobeying not only the Regulation , but the standing order of the employer, the law is promoting a higher standard of care.

Assuming that the employer has taken all reasonable precautions, how can he prevent a breach of a Regulation solely within the control of the employee, where the employee does the prohibited act intentionally, or through his own negligence or inadvertence. Surely, in those circumstances as has been said, "the law is engaged, not in punishing thoughtlessness or inefficiency, and thereby promoting the welfare of the community, but in pouncing on the most convenient victim "… [Emphasis Added] 2.

What was reasonably expected? [ 46 ] The uncontroverted evidence in this case from Neil Crocker is that the 10 inch pipe whipped 41 feet and then recoiled to come to rest 25 feet from its original location. In this whipping process it hit Ron Deglau in the head area and caused fatal injuries as set out in the Autopsy Report. [10] These measurements are consistent with the testimony of Terrence Piche. Although Mr.

Piche has experienced some personal issues since the incident, including a head injury which he says has affected his memory, I find that he was sincere in attempting to provide the Court with an honest and accurate account. [ 47 ] During this trial there were various references to anecdotal evidence regarding the movement of pipes or fittings when under pressure. The Tron Power incident, referred to above, illustrates this potential. Many of the witnesses were asked their knowledge of pipe movement when subject to air pressure.

Although each of the witnesses had different knowledge and experience, the evidence as a whole is unequivocally consistent that the movement of a 10 inch pipe 41 feet or even movement beyond the concrete barriers shown in the photographs could not be reasonably expected. [ 48 ] Based on the evidence presented at this trial, I find that Robwel could not have reasonably expected this 10 inch pipe to move beyond the concrete barriers which I find were erected specifically to contain its movement. Although this finding is significant, it is not decisive. I rely on R. v.

Sunshine Village Corporation , a decision of Justice Bensler, of the Alberta Court of Queen’s Bench, when she quoted, with approval, her colleague Justice Hillier, in R. v. Lonkar Well Testing Ltd.: [11]

For a potential danger to be foreseeable, there must be at least a reasonable prospect or expectation that it will arise. “Foreseeable” is not the equivalent of “imaginable”. If s-s 2(1)(a)(

i) required not only foreseeing and addressing a potential danger so as to ensure the health and safety of workers, but imagining all the bizarre and unforeseeable situations which might create a further danger, then the employer’s liability under this provision would be absolute. This approach would render meaningless the phrase “as far as reasonably practical”. 3. The safety steps taken by Robwel [ 49 ] It is clear to me that Robwel worked in close conjunction with Cameco to establish and maintain a safe work environment for all employees.

The testimony of Gary Haywood establishes that Cameco safety personnel were generally responsible for safety at the mine site. This is relevant as it provided a level of indirect oversight to ensure the safety of Robwel employees. In addition, Joe Bonin testified at this trial. He was employed, at the time of this incident, as the safety manager for Robwel. He provided a level of direct supervision to ensure the safety of employees of Robwel working at McArthur River.

It is significant that Joe Bonin testified that he was working towards having Robwel safety certified even though the certification was not required. In general, I am satisfied by the evidence of Rivers, Lenius and Bonin, that at Robwel safety was a priority and this was reinforced to the employees on a daily basis. [ 50 ] This atmosphere of safety was created both by a general attitude and by specific precautions which were taken by Robwel.

Both these specific precautions and general attitude were summarised by counsel for Robwel in their brief: [12] • Explicit and repeated directions to stay clear of the end of the line; • To respect the fact that air or water pressure in a line is a potential hazard; • To not approach the line until they had confirmed with the operator of the compressor that he had bled off the pressure from the line; • By supplying two-way radios to their employees so that they could communicate with each other and their supervisors; • To conduct weekly safety meetings and daily toolbox meetings where the hazards were identified; • By insuring there was in place a concrete barrier which both provided protection and a warning to the workers to stay clear of the end of the line; • By providing a van to say (sic) in while watching the end of the line; • By having competent and experienced supervisors onsite at all times who did checks throughout the day with the employees and the work that they were performing as well as meeting with them at coffee breaks and lunch hour; • By adhering to the policies and directions issued by Cameco who had direct supervision of the site, including adhering to the terms of the JSA prepared by Cameco; • By ensuring that all of its employees had gone through a safety training program once they were hired; • By employing the “five point job hazard analysis” system thereafter which was completed daily; • By repeatedly emphasizing the importance of safety highlighted by Robwel’s hiring of a full-time safety manager in February, 2006; and • Very significantly, working under circumstances where Robwel understood Cameco was overseeing its work and ensuring that any hazards were addressed. [ 51 ] I’ve reviewed these procedures and I am satisfied that each one of them is established by the evidence presented at this trial. [ 52 ] There was at this trial a great deal of evidence devoted to the Job Safety Analysis Procedure.

The reasons for, and the importance of, the Job Safety Analysis were explained by Gary Haywood. I accept his evidence. A Job Safety Analysis (JSA) was prepared for clearing of the lines in July 2006. This JSA was filed as Exhibit P5. Given the tragedy that occurred on October 23, 2006, it is a tendency to want to review the circumstances with hindsight and conclude more should have or could have been done. I have resisted this tendency, as I believe it would be inappropriate.

[ 53 ] Given the expectations for pipe movement when under pressure, which existed on October 23, 2006, and the detailed nature of Exhibit P5, which will be discussed below, it is my conclusion the fact that an updated JSA was not filed is a factor to be considered, however, it is not conclusive. I am mindful of the comments quoted by Judge Goldstein in R. v. Jamel Metals : [13] In other words, an accused must take all reasonable steps to avoid harm.

However, that does not mean an accused must take all conceivable steps. [ 54 ] In these circumstances I am satisfied by the evidence that Robwel took all reasonable steps to ensure that their employees were competently and sufficiently supervised, completely and sufficiently trained, and sufficiently experienced to participate in and complete the job of clearing and de-icing lines on October 23, 2006. It is my conclusion that the evidence presented at this trial convincingly satisfies me of this on a balance of probabilities.

Issue #2: In relation to count #3 does The Mines Regulations apply to Robwel Constructors? [ 55 ] This issue has arisen given the wording of The Mines Regulations which is the basis of count #3. Counsel for both Robwel and the Crown filed submissions on this specific issue which were helpful to me. I will quote from their briefs extensively as I believe they concisely define the issue. [ 56 ] The term “mine” as it is used in these Regulations has a broad meaning and is defined as a noun and as a verb. The Crown brief refers to s. 2.1 of The Mines Regulations as follows: 2(1) (cc) “ mine ” : (

i) when used as a noun, means an opening or excavation in, or working of, the ground for the purpose of obtaining, proving or opening up a mineral, rock, stone or clay and includes: (

A) a quarry, excavation or opening in the ground that is made for the purpose of searching for or removing a mineral, rock, stone or clay; and (

B) all workings and plant under or above ground that are used in connection with crushing, reducing, melting, refining or treating any mineral, rock, stone or clay; and (ii) when used as a verb, means any method of working by which a mineral, rock, stone or clay may be disturbed, removed, carted, carried, washed, dissolved, sifted, roasted, smelted, refined, crushed or otherwise dealt with for the purpose of obtaining any mineral from it, whether the mineral, rock, stone or clay was previously disturbed or not. [ 57 ] In support of its argument that the Defendant is subject to these Regulations, the Crown brief states: [14] Robwel entered into a contract with Cameco Corporation to provide services that were integral to mining operations, in particular, to de- watering/de-icing of pipes.

The de-watering/de-icing of pipes is ultimately linked to the routine removal of underground water at the same mine. A number of witnesses testified that the de-watering/de-icing of pipes had occurred on several other occasions at this same mine reinforcing the Crown’s position that de-watering/de-icing of pipes was routine and integral to the mining process. Further, Robwel, itself, had been on site for approximately 15 years and had been involved in the de-watering/de-icing of pipes from time to time. Whether the work being performed by Robwel was on surface or underground is not relevant.

[ 58 ] The defence counters this argument in its brief as follows: [15] 2. The position of the Crown essentially is that any work being done at McArthur River falls within the definition of a “mine” and thus is governed by the Regulations . However, if that

interpretation were correct, this would be clearly spelled out in the extensive Regulations . We attach a copy of sections 1-36 and of the index for the balance. The Regulations confirm that only certain select activities fall within the definition of a mine and not every activity carried on in the area where a mine is located is necessarily captured by the Regulations . For example, a secretary working in the office of a mining company does not fall within the Regulations . The type of work being carried out by Robwel at McArthur River was general construction work, others were “mining”, including Thyessen Mining, another contractor on site. 5. Finally, even if

section 20 of the Regulations did apply, some context would have to be provided to its requirements. For example, one would not expect a written training procedure for putting a spade in the ground. In this case, there was an orientation program by both Cameco and Robwel. It included a written safety program and a manual which each employee was provided with. A JSA was prepared and used for this work.

Although much has been made of the fact that a second JSA was not prepared in September/October of 2006, the reality is that where, as here and as the Crown has agreed, the risk was not reasonably foreseeable, there is nothing more that would go into a JSA other than what it already contained.

Beyond putting up barricades, ensuring there was a concrete jersey barrier on either side of the line, and directing all personnel to stay clear of the end of the line, what other safety precautions could be expected given that the risk was not reasonably foreseeable? [ 59 ] I have reflected on the remedial nature of this type of legislation and the broad

interpretation which must be given to this legislation, in order to protect workers as stated by Judge Koskie. [16] I agree with the defence submission that a completely unrestricted

interpretation of the word “mine” as used in these Regulations would lead to unjust and unanticipated consequences such as it applying to the secretary working in the mine office. In order to avoid such an overly broad result, this

interpretation must be made on a case by case basis. [ 60 ] Given the facts in this specific instance, particularly the evidence connecting the cleaning of lines to the operation of the mine, it is my conclusion that this work performed by Robwel on October 23, 2006, should be subject to The Mines Regulations . [ 61 ] Having reached this conclusion I must consider the substance of count #3 and determine whether Robwel failed to develop a written program for the training of workers Deglau, Piche and Blatz, to ensure that they were adequately trained in the de-watering and de-icing of pipes.

It is my view that this offence is a strict liability offence and subject to the same tests of due diligence as defined in Merchant , Sault Ste. Marie , and Jamel Metals , [17] and as set out above. [ 62 ] I agree that context is important in considering the requirements of a written program. A written program is not defined in The Mines Regulations , presumably to allow some flexibility in its application to different circumstances. Robwel is a construction company, which was engaged in general labouring duties at McArthur River on, before and since, October 23, 2006.

I have found that safety was a priority to Robwel. I have also found that Robwel cooperated with Cameco in taking necessary steps to ensure the safety of all employees. The JSA (Exhibit P5) is a written guideline for employees to follow. It was available to all employees. It contains both specific and general precautions designed to train employees with the objective of ensuring safe completion of the job of cleaning and clearing water pipes.

Exhibit P5 includes such procedures as: • Toolbox meetings / good communication; • Control traffic in areas; • Confined space entry permit and procedures; • Barricade and signage. [ 63 ] Gerry Rivers acknowledged in his testimony that working with compressed air is hazardous. He recognized that a significant hazard when cleaning lines with compressed air is an obstruction in the line which could cause the air pressure to build to unsafe levels. This obstruction could be ice or some other foreign particle. However the hazard is the same and the precautions are also the same.

I am satisfied, on a balance of probabilities, given the evidence presented at this trial that Robwel took all reasonable steps to develop a written program, and in fact did develop a written program in conjunction with Cameco, Exhibit P5, to ensure their employees could safely complete their duties of cleaning and clearing water pipes on October 23, 2006.

VI. CONCLUSION [64] Given the evidence of Jonathan Blatz, Terrence Piche and Gerald Rivers, I know that this tragedy has had a profound effecton individuals and families. I also appreciate that the most profound effect will be to the family of Ronald Deglau. It is not possible forme to measure this effect but it is important that it be recognized. [65] Having considered all of the evidence, I am satisfied that all of the charges against Robwel should be dismissed for thereasons stated. ________________________ H. M. Harradence, J [13] R. v. Jamel Metals Inc, supra, para. 19, quoting R. v. British Columbia Hydro & Power Authority (1997), (BCSC), 25 C.E.L.R. (N.S.) 51 (B.C. S.C.).